Jim Muncy asked those attending the Space Frontier Conference last week to contact their Senators in a bid to draft a compromise on HR 3752. (credit: J. Foust)

When good legislation goes bad

by Jeff FoustMonday, October 11, 2004

This should be a good time for the young suborbital spaceflight industry. The excitement generated by Mojave Aerospace Ventures’ victory in the X Prize competition, plus the Virgin Galactic deal announced days before the first X Prize flight, has demonstrated that a number of the technical and financial barriers to the industry can be overcome. Within a few years regular commercial suborbital spaceflights may well be a reality.

However, a dark cloud has now developed over the industry, at least in the United States. HR 3752, the Commercial Space Launch Amendments Act of 2004, was designed to foster the development of the industry by improving the regulatory environment and eliminating any uncertainty about who would regulate the field, and how. Hung up in the Senate for months, it finally appeared in recent weeks that the bill might move forward and make it through before Congress adjourned this year. A seemingly innocuous change in the bill’s language, though, has put the industry on alert and put the bill’s prospects in jeopardy.

A debate over language

Earlier this year, it looked like HR 3752 might sail through Congress virtually unopposed. It made it through the House of Representatives with strong bipartisan support, being approved by the full House in early March on a 402-1 vote.

In the Senate, though, the bill ran into concerns that the definition of suborbital vehicles—the same definition the FAA approved last October—might exclude some classes of suborbital vehicles that take off and land under jet power, but use rockets for the actual suborbital flight. This was a particular worry for Rocketplane Ltd., an Oklahoma-based company developing such a vehicle. Made aware of those concerns, Sen. James Inhofe (R-OK) put a “hold” on the bill, preventing further consideration of the legislation in the Senate.

A seemingly innocuous change in the bill’s language, though, has put the industry on alert and put the bill’s prospects in jeopardy.

This led to months of negotiations behind the scenes as the various parties tried to develop alternative language that would assuage Rocketplane’s concerns and salvage the bill. While some vilified Inhofe for stopping progress on the bill, Jim Muncy of PoliSpace said that the senator deserved credit for taking notice of the emerging industry in the first place. “I think Senator Inhofe is a hero for having fought for the industry,” he said at the Space Frontier Conference 13 in Long Beach, California, on Friday. “That is a good thing.”

By late July a compromise had been reached on the definitions that would allow the bill to proceed. The problem was that by that time, particularly in an election year, there were limited opportunities to move the bill forward in the Senate before adjournment. Muncy said that the House tried “very hard” to work with the Senate on finalizing the details of the revised bill, but it wasn’t until two weeks ago that the Senate finally provided House staffers with their preferred, alternative language. And that’s when the problems really started.

Law of unintended consequences

At the present time the FAA’s top priority is ensuring that the uninvolved public is protected from the risks of commercial spaceflight, be it orbital or suborbital. “Obviously, our first concern will always be the safety of the uninvolved public,” FAA Administrator Marion Blakey said during a press conference in Mojave the day before SpaceShipOne’s second prize flight. (See “Dealing with the risks of space tourism”, The Space Review, October 4, 2004).

That is a role that has been endorsed by the industry, so long as those who agree to fly suborbital vehicles are allowed to accept greater risk. “The uninvolved public has to be held to a very high level of safety. There’s no reason why they should be exposed to any higher level of risk than they see from any other aspect of industrial life,” Jeff Greason of XCOR Aerospace said at the same press conference. “Passengers—people who are deliberately putting their lives and treasure at risk—as long as they know what they are getting into, they should be allowed to take that risk.”

The amended version of HR 3752 could change all that. While the Senate’s version of HR 3752 has not been formally released, The Space Review obtained a copy of the amended bill on Friday; NASA Watch has also posted a copy of the bill. The text of the bill looks at first glance to be fairly harmless, with changes to a number of sections of existing law. The bill, however, does include a number of provisions like the following:

(6) Section 70105(a) of title 49, United States Code, is amended—
(A) in paragraph (1)—
(i) by inserting “this chapter and the protection of” after “Consistent with”;
(ii) by inserting “safety of crew and space flight participants,” after “public health and safety,”

This amends existing law in this example to read as follows:

A person may apply to the Secretary of Transportation for a license or transfer of a license under this chapter in the form and way the Secretary prescribes. Consistent with this chapter and the protection of the public health and safety, safety of crew and space flight participants, safety of property, and national security and foreign policy interests of the United States, the Secretary, not later than 180 days after receiving an application, shall issue or transfer a license if the Secretary decides in writing that the applicant complies, and will continue to comply, with this chapter and regulations prescribed under this chapter.

“This is not out of malice, not out ignorance, but, as usual, best intentions,” Muncy said of the chages.

Language like this, found in multiple sections of the bill, raised alarm bells in much of the suborbital industry because it appears to elevate the safety of spacecraft passengers and crews to the same level as the safety of the uninvolved public. This, commercial suborbital advocates fear, could stifle the industry by making the FAA ensure that the risk to passengers is kept as low as the risk to the uninvolved public, which is extremely low under current regulations enforced by the FAA’s Office of Commercial Space Transportation (AST). In the worst case, this legislation could effectively kill the commercial suborbital industry in the United States.

While some have raised the prospect of a concerted effort by Senators or their staffers to try and put the brakes on an emerging industry, Muncy thinks that the result was an unintended outcome of a well-intentioned measure to ensure flight safety. “This is not out of malice, not out ignorance, but, as usual, best intentions,” he said.

“What they didn’t realize is by changing that [FAA] charter, you give the regulators in AST not just a license, but in their view a mandate to regulate vehicles—not just who gets on vehicles, but to regulate the reliability of the vehicles themselves to ensure that they have a safety record for the people on the vehicle that is identical to the safety record for the people on the ground,” he said.

Muncy, among others, believes this is an onerous load for such a new industry. “There is no other mode of transportation in the world where you are expected to be as safe on the vehicle as when you are off the vehicle,” he said. “People must be able to fly at their own risk. What the legislation would do would be to change that.”

“In order to achieve new levels of safety, we have to allow many approaches to be tried,” Greason said.

The industry instead wants a regime where passengers have the ability to accept the risk as vehicle developers build up the flight experience needed to figure out what vehicle features and flight techniques improve safety performance, and integrate them into new generations of vehicles. “In order for this industry to become commercially successful, we have no choice but to improve that level of safety” compared to existing government vehicles, Greason said last week in Mojave. “But since we are charting new ground, no one can tell us how to do it. In order to achieve new levels of safety, we have to allow many approaches to be tried.”

While one might argue that it not the intent of the bill to elevate passenger safety to the same level as the uninvolved public, Muncy believes that regulators would have no choice to do that if the bill as currently written is passed. “You cannot expect people in the government to interpret and divine what Congress intended, not when they have been told that they are supposed to protect safety.”

Fixing the bill

Had all gone well, HR 3752 would have passed in the Senate late last week through a process called unanimous consent, which allows non-controversial bills to speed their way to passage. However, Muncy said Friday that “some helpful Senators” agreed to prevent that from happening, keeping the bill bottled up there.

Congress was scheduled to recess this weekend to allow members to return home for the final weeks before the general election November 2. Rather than adjourn for the year, though, Congress will come back for a lame-duck session in November, primarily because of work remaining on a number of budget bills (most of the federal government is currently funded by a continuing resolution that runs only through November 20.) This provides another chance for advocates to fix the bill and pass it.

“Hopefully, what’s going to happen is that we’re going to get together and talk between now and November,” Muncy said. “We’re going to have an inclusive process to come up with a compromise, a truly good compromise, where the FAA is included, the industry is included, and we work out something.”

“We’re going to have an inclusive process to come up with a compromise, a truly good compromise, where the FAA is included, the industry is included, and we work out something,” Muncy said.

He encouraged those attending the conference, as well as anyone else interested in correcting the problems with HR 3752, to call or fax their Senators. “Tell them that they should ask the Senate Commerce Committee to compromise with the industry and not try to overregulate this industry before it’s even born.” The exact details of those messages to Senators are less important than the way they’re delivered. “I want you to speak from the heart,” he advised conference attendees.

Even if a compromise is not enacted, it’s not the end of the industry: AST will continue to operate under existing regulations, and proponents can try again next year with new legislation. Muncy said he would much rather get a good bill passed this year than start over next year, but he would accept the latter over a bad bill. “It’s not the best of all possible worlds, but it’s pretty good.”

Jeff Foust (jeff@thespacereview.com) is the editor and publisher of The Space Review. He also operates the Spacetoday.net web site and the Space Politics weblog. Views and opinions expressed in this article are those of the author alone, and do not represent the official positions of any organization or company, including the Futron Corporation, the author’s employer.